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HomeArt? or Theft?: A conversation on authorship, fair use and the tension between aesthetics and meaning

Art? or Theft?: A conversation on authorship, fair use and the tension between aesthetics and meaning

Wednesday, March 8, 2017

NYU Law’s Amy Adler and artist Raymond Waters spoke at the Faculty of Law about the eternal importance of appropriating art

By Ellie Marshall, 2L / Photo by alumnus David Spiro, @spirotoronto

On Friday, March 3rd, the Centre for Innovation Law and Policy hosted a fascinating lunchtime discussion on the intersection of copyright in the practice of artists whose work repurposes or appropriates other works. Organized by Prof. Simon Stern, and moderated by former Member of Parliament and gallery owner Prof. Craig Scott, of Osgoode Hall Law School, the event began with an introduction from Raymond Waters.

Waters situated his work, which largely repurposes ready-made, popular culture items, in a discourse about how we assign value to objects and to people. Waters’ work recognizes the constantly changing nature of money, commodification and popular culture by contesting the values assigned, usually by shredding or destroying cultural emblems associated with those values. His work provided a thought-provoking basis for the discussion on the legal barriers facing artists today.

Prof. Amy Adler’s lecture on the evolving role of the fair use doctrine in American copyright jurisprudence referenced Waters’ work, which highlights the tensions among politics, freedom of expression, and the morality of destruction and creativity. Adler’s lecture quickly problematized copyright law’s stated purpose, “to promote the progress of science and useful arts,” as a significant hindrance to artists such as Waters.

“Copying matters so much to the history of art,” said Adler. To exemplify this, Adler drew on the recent decision by the Second Circuit Court of Appeals in Cariou v Prince, which questioned whether Richard Prince’s appropriation art treatment of Patrick Cariou’s photographs was a fair use. The trial court asked Prince to destroy some thirty copies of his work after he testified that he did not intend to create a new meaning from the original works, and the appellate court held that 25 of the images were permitted, as transformative, and remanded the remaining five back to the trial court for further investigation. As Adler showed, it was hard to discern the differences between those five and the images that the appellate court regarded as transformative uses.

Turning to artistic intent as the basis for these decisions is “deeply problematic,” according to Adler, because it requires the court to rely on the artist’s testimony, without investigating the complexities between meaning and aesthetics. Quoting art historian WJT Mitchell, Adler reminded us that “whatever images are, ideas are something different.” Further, Adler emphasized the important role of copying in art, both historically and in contemporary art, as a basis for her emerging argument that copyright may not be suitable for the visual arts.

Adler suggested turning to think about art as commodity to solve the dilemmas posed by fair use, proposing a shift in inquiry towards the price an object sells for. Adler used as her prime example Richard Prince’s recent work, which appropriates other artists’ Instagram portraits. In one instance, the original Instagram artists—Suicide Girls—re-appropriated Prince’s appropriation, and sold their work at a tenth of the cost. Adler used this instance to emphasize the importance of authorship in value, particularly in the role artists play in curating experiences.

The packed audience in the Bennett Jones Lecture Hall debated Adler’s position regarding the primary role of the secondary author and asked how original artists can be respected without the protection of copyright law. Adler’s answers reinforced her opinion that the repurposing or re-appropriating author ought to be protected, with respect to their uses of other artists’ work, because the new use advances the progress of culture. While the audience was not entirely satisfied with this answer, primarily because it seems to neglect value potentially stolen from artists, consensus emerged around the difficulty of leaving these problems to the court. This reluctance is exemplified, as Adler points out, by the decision of many institutions, such as the Metropolitan Museum of Art, to stop requiring licenses for using their image catalogues.

Concluded Adler: “We need to get courts out of the job of adjudicating meaning.”